March 28, 2012

Reports from Day 3 of the Obamacare oral argument, now in progress.

The argument today is about severability — that is, whether, if a portion of the Act is struck down, some or all of the rest of the Act must fall along with it. Kevin Russell reports, following Paul Clement's argument (boldface added):
The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail, that is the government’s position. The fact that the liberals were very engaged, particularly  Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.
And from Amy Howe:
Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.

But Ed Kneedler also faced skeptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)
Thus, it sounds like the parts of the Act that would destroy the private insurance companies will go down along with the individual mandate — that these provisions of the Act are not severable (which seems obvious to me). The harder question was whether the entire Act will fall.

Are we supposed to go through the whole 2700 pages? Ha ha. Why should they? The members of Congress didn't. Obama didn't. (Signing the bill, he said: "... you know the feeling of signing your name to pages of barely understandable fine print").

And who can ever forget: "We have to pass the bill so you can find out what is in it"? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.

129 comments:

SGT Ted said...

Thats why they should take the opportunity to dump the whole thing.

SGT Ted said...

Boy, Im a spammer today.

Thorley Winston said...

Agreed, I think the Supreme Court should just take the position that since Congress chose not to include a severability clause (which is standard boilerplate in most legislation and contracts), the whole thing should either stand or fall. If anything, perhaps it would help discourage future attempts at ramming through “historic, once in a generation” bill.

drozz said...

to me, what was important is yesterday. it seems that they are following Vinson's path of "hell if i know i'm not reading it".

optimially, strike the mandate down, call it a penalty, and leave seperability to congress when/if they relegislate.

Hoosier Daddy said...

"... Are we supposed to go through the whole 2700 pages? Ha ha. Why should they? The members of Congress didn't. Obama didn't..."

And isn't that pathetic? Our 'representatives' passed legislation that will have a direct impact on every single American and didn't read the fucking bill.

FedkaTheConvict said...

>>Absolutely no one on the face of the earth knows the entire text, and no one will ever know.<<

Betsy McCaughey knows.

drozz said...

HD

pathetic, but not unexpected. remember the nurenburg defense come november (because its all they got)

edutcher said...

I was given to believe that, if there was no severability provision in the bill, the whole mess would necessarily go down.

Ann Althouse said...

And who can ever forget: "We have to pass the bill so you can find out what is in it"? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.

I can see a NYT best-seller, authored by the Profeessor, detailing what was in it.

Title?

"Are You Serious? Are You Serious?".

drozz said...

DROZZ NO SPELL GOOD

Jay Retread said...

I am reposting this from another thread so it can not be dodged. I realize that not being a conservative poster here makes me an unwelcomed voice of dissent.

Ann,

You and other conservatives have been totally intellectually dishonest. What solution do you propose to solve this problem?

Here are the options
1)Accept the inefficiencies of the current system were cost continue to outpace inflation, heath care costs continue to swallow up more of our economy and a large percentage of our population get poor health care that is often administered at the E.R.

2) The old liberal solution-have government run health care.

3) The up to recently moderate conservative solution-have a health insurance mandate with government support for those who can not fulfill their obligations. Also known as Romneycare.

4) The real conservative solution that they will not own up to-those who can not or will not get health insurance do not receive medical care even if it is life saving.

Ann, why don't you be intellectually honest and layout what solution you support?

I am not holding my breath that you will stop the game playing and be a serious voice in this debate in how to solve this serious problem.

P.S.- what conservatives might find out is that with option 3 being removed from the table they will see option 2 within a shorter time than they might think.

MayBee said...

I'm not on board with the idea that something is Constitutional because it's really important to make the bill work.

Matthew said...

I've seen mock legislatures that remember to have sever-ability clauses.

Also, it was there, and then taken out. It is clear that the intent was that it had to be all in. The whole structure falls apart without the mandate anyway.

traditionalguy said...

A game of badmitton could result in the SCOTUS hitting it over the net to Congress, and the Congress hitting it back over the net with a National Single Payer health plan.

Now is not the time for Paul Ryan's budget to be pushed in Congress. Make the Dems propose something first after the SCOTUS rules.

bagoh20 said...

2700 pages of legalese that "Absolutely no one on the face of the earth knows the entire text, and no one will ever know."

versus

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


Freaking lawyers! What curiously destructive creatures.

Are you people completely blind to truth, beauty and freedom even when it's handed to you almost as a miracle in human history?

MadisonMan said...

I'm not on board with the idea that something is Constitutional because it's really important to make the bill work

Complete agreement.

If something is broken, you can fix it within the necessary confines of the Constitution.

Rialby said...

Jay - 1

Meade said...

Jay Retread, it isn't your "voice of dissent" that is unwelcome here, it's your voice of boringness.

bagoh20 said...

The question here is: does the SC have to respect the stupidity and arrogance of the legislative branch?

I guess they could just write the damned law for them.

Or, and I know it's crazy, but, follow the constitution.

Scott M said...

4) The real conservative solution that they will not own up to-those who can not or will not get health insurance do not receive medical care even if it is life saving.

Jay's accusation of intellectual dishonesty is intellectually inconsistent for failing to note rationing under a government-run system would end up denying needed care to those that need it, even if it might save their life.

Aside from that, the question isn't what should we do...it's whether or not this current law is constitutional. There's a difference despite what the wise latina might think.

Rialby said...

If liberals are so in favor of providing catastrophic coverage for the uninsured then that's what they should set up - a system that pays for non-routine visits.

Rialby said...

Oh wait, doesn't that exist already?

Alex said...

Ann, why don't you be intellectually honest and layout what solution you support?

JayTard Translation - wah wah I didn't read the 2700 page bill but at least we CommieCrats passed SOMETHING!!!

Rialby said...

In 50 words or less, I want to hear from a Progressive what Obamacare was supposed to do because I am confused.

Alex said...

So liberals are saying that they couldn't care less about the Constitution.

Alex said...

Liberals claim that they care more.

Q said...

Here are the options
1)Accept the inefficiencies of the current system were cost continue to outpace inflation, heath care costs continue to swallow up more of our economy and a large percentage of our population get poor health care that is often administered at the E.R.




Obamacare does nothing to address any of these issues.

And what is with this "our economy" nonsense? Different people spend different amounts of money on health care - much to the consternation of the left. There is no monolithic thing called "the economy" which is being "swallowed up" by some monolithic thing called "healthcare".

Healthcare costs in general keep gong up because healthcare in general continues to get better. If government steps in and makes everyone's healthcare decisions for them, it can control costs. But it will end further developments in healthcare by doing so.

Seeing Red said...

It would be nice if 1 branch actually did their job for a change.

This is what happens when you pass the buck.

bagoh20 said...

Jay Retread, is that really all the options? Well no wonder we're here. I'm completely convinced now.

Food and housing is even more expensive than health care over a life time, yet few starve or are forced to live on the street unless they make that choice.

Think about how this more expensive need is addressed.

Yes we all don't get lobster or truffles, but we don't starve either.

The answer is not one law, especially one sneaked through without any support from the other party and barely even understood, but clearly unconstitutional. Of that I'm sure. We need to start over and forget this monstrosity or the problems you list will never be solved.

This law is the only idea less sustainable than our current system.

Pastafarian said...

Jay Retread: "What solution do you propose to solve this problem?"

a) Tort reform.

Huge overlooked driver of medical costs. How many hundreds of thousands of lawyers do we have making their living (and a very nice one at that) securing small fortunes for (how many millions of) people who sue their doctor?

That's one hell of a lot of "free riders" on the system right there.

And then you have the added layer of inefficiency: The medical malpractice insurance industry spawned by the John Edwards ambulance-chasing sheister game.

b) Do away with health insurance entirely. (Or rather, allow the market to do away with it, by removing distortions on the market that encourage the purchase of health insurance.)

Health insurance was initially offered by employers as a way to entice prospective employees when salary was controlled by command-economy Democrats; employers continued to offer it because of high marginal tax rates, and the fact that premiums weren't taxed.

Reduce marginal tax rates and allow people to use their money as they see fit. Some might pay for their own insurance. Others might save, and then use their own funds if they get sick.

If there was no insurance, medical care would be no more expensive than other services for which there is no insurance.

c) If someone wants to purchase medical services, let them go out and get a fucking job, create wealth, and earn the money to pay for it.

Now shriek like a pearl-clutching ninny about the inhumanity of my suggestions; or reject them out-of-hand as a non-response and yet another "dodge."

cubanbob said...

Jay your assumption that there is a problem that has to be solved isn't a view held by the majority of the public so your starting assumption as bedrock fact is wrong. Even if for the sake of argument we assume your basis is true this bill doesn't solve that problem and worsens the existing situation for the majority of the people in this country. The status qou is better for the majority of the people than the solution the left has provided through this bill.

The democrats and Obama could have simply expanded Medicaid and solved the problem as you see it but that would require political courage, the courage to pass higher taxes and cut other spending to finance this bill but Obama is no LBJ when it comes to political acumen.

I find it amazing the the justices are so unbelivably dense when it comes to the severability issue. It isn't as if congress has never passed a bill with a severability clause, the fact that the ACA doesn't have one speaks for itself.

Nathan Alexander said...

From here: http://www.latimes.com/news/politics/la-pn-justices-poised-to-strike-down-entire-healthcare-law-20120328,0,2058481.story

An Obama administration lawyer, urging caution, said it would be "extraordinary" for the court to throw out the entire law. About 2.5 million young people under age 26 are on their parents' insurance now because of the new law. If it were struck down entirely, "2.5 million of them would be thrown off the insurance rolls," said Edwin Kneedler.

So if it is horrible for 2.5 million to be thrown off insurance rolls if the law is struck down, is that somehow better than the 20 million who will lose the insurance they like if the law stands!?!?

Jay Retread said...

Meade wrote "Jay Retread, it isn't your "voice of dissent" that is unwelcome here, it's your voice of boringness."

Thank you Larry for reminding me that I should not waste my time by posting anything serious here.

Michael K said...

"You and other conservatives have been totally intellectually dishonest."

No wonder you're not welcome ! Why not make your point, if you have one.

Alex said...

Jaytard - don't let door hit your ass on the way out!

Craig said...

Sure. Let the market rule. We can all get our health care from the same place where we get our semiconductors.

Seeing Red said...

A lot of the inefficiencies are caused by government mandate.

Why should the 90% be inconvenienced for the 10%? Fix what you have. Come up with more options, the market will take care of the rest.

Since Indians are sovereign nations, are they required to participate?

Alex said...

Ruth Bader Ginsberg represents all that is dangerous in today's liberals. She honestly thinks the SCOTUS is a legislative body.

Scott M said...

So if it is horrible for 2.5 million to be thrown off insurance rolls if the law is struck down, is that somehow better than the 20 million who will lose the insurance they like if the law stands!?!?

I'm sure I can find 2.6 million children between the ages of 20 and 26 that need to be thrown. Assuredly.

Alex said...

Sure. Let the market rule. We can all get our health care from the same place where we get our semiconductors.

Apple seems to be doing quite well without government interference.

Rialby said...

How many legal residents do not have health insurance? Someone please answer that.

Michael K said...

"4) The real conservative solution that they will not own up to-those who can not or will not get health insurance do not receive medical care even if it is life saving."

Shit ! Why are you telling me now ! I spent all those midnight hours in the OR with illegal aliens and drunks and I didn't have to ???

Rialby said...

"Sure. Let the market rule. We can all get our health care from the same place where we get our semiconductors."

Can you please speak to the way that the AMA has distorted the market thereby creating a need to import more and more doctors who come from the same places we get our semiconductors?

Seeing Red said...

Typical liberals, whine whine whine, - you fix it, what's your solution? We have options, we discuss them in other threads, doesn't mean you'll like them.

bagoh20 said...

I think if we struggle with these difficult questions much longer we will come to the inevitable conclusion that all the lawyers will have to go. A simple law moving them all to medicine, nursing or medical billing, according to ability, would do it.

That's called thinking outside the box. The sun is beautiful out here.

Meade said...

"Thank you Larry for reminding me that I should not waste my time by posting anything serious here."

Did I say "serious"? I meant to say, boring, self-important, and peevish.

Either way, you are quite welcome, Jayee.

Rusty said...

And who can ever forget: "We have to pass the bill so you can find out what is in it"? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.



Right there is cause to shut the whole thing down as being unconstitutional.
How can there be severability when no one knows what is severable?
It's a stinking pile of crap. crap it and start over.

Seeing Red said...

"4) The real conservative solution that they will not own up to-those who can not or will not get health insurance do not receive medical care even if it is life saving."
-----

Wait a second, I thought 1 of the issues was those who have insurance aren't being given life saving treatment because the evile insurance companies deny the treatment?

don't you understand it's for the children?

MaxedOutMama said...

I read the bill. My first reaction to it was that all the provisions excluding judicial review and making it hard for Congress to modify it eventually would cause it to be ruled unconstitutional excluding the whole Commerce Clause question.

When you pass a law creating very small mostly executively appointed panels to make hugely material decisions, and then include provisions that make it almost impossible for Congress to override the conclusions, and then create as situation that isolates the effect of such decisions to relatively small portions of the population, it becomes clear that the law was a denial of due process/equal protection, and could never stand.

I was interested to read the first day's argument, in which it became clear that the justices had read the bill and were already mentally carving out "equitable exceptions" from the exclusion of judicial review - and the liberals were most focused on that.

Alex said...

The real conservative solution is "sink or swim", "pull yourself up by our bootstraps". Worked for Abraham Lincoln.

Jay Retread said...

Pastafarian wrote- "If someone wants to purchase medical services, let them go out and get a fucking job, create wealth, and earn the money to pay for it."

Thank you for giving the honest conservative answer. Ann and most others are unwilling to be forthcoming and instead just play games around the edges.

With Ann's husband Meade letting me know that I am not welcome here I will leave you all to continue to engage in your one sided un-intellectual clusterfuck.

Like I acknowledged at the top-that is the way they like it.

MayBee said...

The sad thing is, thousands of HR people around the country will be expected to read it so they can be in compliance with it.

Rialby said...

Let me help you answer that.. see the AMA has kept the number of doctors graduating from US Medical Schools flat for 30 years DESPITE growing population. They do this to keep salaries (and costs) high. In so doing, they have:

1) Required us to import doctors from Asia
2) Contributed to high costs
3) Reduced access to health care

If unleashed, the market would dictate a need a for more medical schools and more doctors. This would immediately lower costs and increase access.

Alex said...

MaxedOutMama - it's not the job of a justice to carve out a piece of acceptable legislation. There is no such thing as sever-ability when it comes to deciding these matters at the SCOTUS level. For them to engage in that is a clear violation of the separation of powers. They wither uphold the WHOLE thing or strike it down. There is no middle ground.

Elliott A said...

I'm sure congress could quickly pass bills to keep people from being dumped. The premium payers are already paying for it, it would not change anything.

Alex said...

JayTard - explain to me why we should cater to the dregs of society? What value do they provide? The way I see it, let Darwin sort 'em out.

Amartel said...

"Freaking lawyers! What curiously destructive creatures."

Whipping boy, reporting for duty.

Seeing Red said...

Hillary's plan excluded expanding doctors and med schools, didn't it? I remember that being a talking point.

Quayle said...

Jay, as a Mormon from a culture with a strong tradition of collectivism, I fully agree that we have enough in America to be able to take care of everybody, and that we should take care of the poor.

So why, pray tell, do you and your ilk demand that the only acceptable solution is the federal government - the most inefficient, most incompetent and unwieldy of our civil organization?

Are you guys so dumb that you can't tell the difference between a big wood club and an advanced surgical robot?

You all talk like you're so smart, then you give the whole solution over to the three stooges of administrative bodies.

dmoelling said...

Question for the legal eagles in this group:

Are the justices also thinking about how they might rule in the other Obamacare issues like unfunded federal mandates on Medicaid? While the individual mandate is a key item, the whole federal direction of state run and funded programs is a huge federalism issue.

Seeing Red said...

Congress doesn't need to write a a law from anyone being dumped, Sebelius gives out waivers.

Kirk Parker said...

JayT,

"I should not waste my time by posting anything serious here."

Well, you certainly haven't wasted any time in this manner previously; why start now?

Quayle said...

Jay!

Jay!

Come back!

bagoh20 said...

This is what you are really looking for, Jay:

Our solution is to start making Soylent Green. The factory will be nonunion and located in Mexico to avoid taxes.

That's the "serious" "honest" conservative position. Now you can chill.

Seeing Red said...

Jay doesn't want to talk about it, all he wants is reaffirmation of his beliefs.

Gene said...

I don't understand why "nobody" knows what is in the bill. Don't all laws have to be published in the Federal Register (or didn't they have enough paper for that?)

Elliott A said...

@Rialby- The doctors have no control over their salaries, they are controlled by the limits the insurance companies (and Medicare) place on reimbursements. The average earnings of Physicians have been in steady decline since the late 1980's. There has been an expansion of number of graduating MDs, but a new crisis is brewing in 2015 when the number of graduates starts to significantly exceed the number of residency slots available. Residencies cost over 300000 per year per slot, and no one is either willing to or can afford to pay what is necessary to make sufficient spots available. 50% of the counties in the US have no general surgeon! The health care problem is not the insurance, but the entire system a to z.

Seeing Red said...

My grade school district offers health insurance policies for the children for I think it's $60 for the school year, 9 months and that includes a $20K or $25K death benefit.

damikesc said...

1)Accept the inefficiencies of the current system were cost continue to outpace inflation, heath care costs continue to swallow up more of our economy and a large percentage of our population get poor health care that is often administered at the E.R.

Do you have similar concerns about college? Those costs are totally out of control. And Obamacare has ALREADY caused insurance premiums to increase significantly. If the bill --- before full implementation --- is causing increases (and it's price tag has doubled as well since passage) --- why do you suppose this will do ANYTHING?

what conservatives might find out is that with option 3 being removed from the table they will see option 2 within a shorter time than they might think.

Not ever happening. This turd sandwich was created by the perfect storm for Progressives and they, as usual, botched it.

As far as a solution?

Simple: allow health insurance policies to be sold across state lines.

Cut car insurance costs nicely.

Seeing Red said...

What the states should do is get together and decide on basic policies that can be sold across state lines, not these wishlists.

bagoh20 said...

"Whipping boy, reporting for duty"

Being whipped sure is a popular job. I may be hurting my own cause by even suggesting it, but if I can save just one child, one innocent child from a life of debauchery, I must try. I'm sorry, I must.

Seeing Red said...

Jay? There's at least 1 study out there that suggests once the federal government got involved accepting the risk of student loans I think around 1960, the costs rose a lot faster than inflation.

Correlation is not causation, but what happens when you remove risk from an individual?

Jason said...

As far as a solution?

Simple: allow health insurance policies to be sold across state lines.


This.

The solution is so easy, but Democrats will be damned if the people actually be burdened with the responsibility of finding cheaper health insurance.

After all, we are simply too stupid.

SGT Ted said...

C'mon, Jay. Get down off that cross and wipe the blood off your brow. It's staining the carpet.

Tank said...

Rialby said...
How many legal residents do not have health insurance? Someone please answer that.


Six adults and

four children.

But we can solve this "problem" by checking the pressure in our tires.

No worries mate.

And Fedka is right, "Betsy McCaughey knows."



Hey while I was typing that the US borrowed $40 million dollars.

La la la la la la la.

Bill Harshaw said...

How many pages is the Constitution? Given this week's proceedings we still don't know what's in the Constitution.

Elliott A said...

Selling health insurance across state lines is worthless, since for a plan to be viable, they require a large group of participating physicians, hospitals, labs, etc. This is not possible to accomplish in most places, with the exception of metro areas bordering or including other states.

Nathan Alexander said...

Sure. Let the market rule. We can all get our health care from the same place where we get our semiconductors.

Okay, let's assume that the market that has resulted in vastly increased performance for continually reducing costs (Moore's Law, no?) is a bad thing.

Isn't the only other choice to let the Govt rule? Command Economy principles?

That resulted in such wonderful results as people standing in line for toilet paper, decade-long waiting lists for cars so horrible they make a Yugo look like a Benz, and a $50 "affordable" lightbulb.

Yeah, I can see why you'd be so down on market economies with that as a comparison.

Matthew said...

"Selling health insurance across state lines is worthless, since for a plan to be viable, they require a large group of participating physicians, hospitals, labs, etc. This is not possible to accomplish in most places, with the exception of metro areas bordering or including other states."

-- That's a bold claim. Do you think physicians, hospitals, labs, etc. will decide to not participate? Do you think Blue Cross/Blue Shield would not love to be able to act more freely?

Jason said...

Selling health insurance across state lines is worthless, since for a plan to be viable, they require a large group of participating physicians, hospitals, labs, etc. This is not possible to accomplish in most places, with the exception of metro areas bordering or including other states.

You base this on what?

Seems to me the car insurance industry is doing just fine.

Joe Schmoe said...

Simple: allow health insurance policies to be sold across state lines.

Cut car insurance costs nicely.


Except...guess where! Massachusetts, of course!

Prior to 2008, state regulators set car insurance rates. As a result, less than 20 companies tried to sell car insurance in MA, and they all charged as much as the state said they could.

In 2008, they switched to a managed competition. Rates could now be set by participating companies. Guess what! Rates went down, surprise surprise. That's led to about a dozen more companies offering MA car insurance, but the rates are still high relative to neighboring states.

Peter said...

Whether it's severable or not, as a practical matter it cannot be possible to demand insurers cover pre-existing conditions without also mandating universal coverage.

For without the mandate, there's no reason to buy insurance until you become expensively sick and thus no way anyone will be able to offer "affordable" insurance.

A law requiring insurers to cover pre-existing conditions without a mandate for universal coverage is like a law mandating that airlines use anti-gravity devices on their airplanes: just because it passes constitutinoal muster does not mean it can actually be implemented.

For sometimes even the majesty of the law is humbled before actuarial reality, or the laws of physics.

Mr. Forward said...

I didn't read the bill, but I am watching the movie.

Joe Schmoe said...

Jay Retread, ostensibly you have climbed back on your high horse after deigning to interact with the hoi polloi, but if you do read this, you made me laugh.

It's up to Ann to solve the health care 'crisis' in this country?

I think it's okay for her to opine on the ideas from the people who are tasked with coming up with ideas.

It's not dishonest to criticize other people's plans without having an entire plan you support. I'm open to a few ideas; just none of the ones contained in Obamacare. Since that's the case before us now, I can criticize it without having to offer an alternative.

Terry said...

Rialby wrote:

Let me help you answer that.. see the AMA has kept the number of doctors graduating from US Medical Schools flat for 30 years DESPITE growing population. They do this to keep salaries (and costs) high.

This is false from beginning to end. See http://www.usatoday.com/news/health/2005-03-02-doctor-shortage_x.htm for a clearer description of a complex issue.
I've heard Rialby's "It's the greedy AMA and the greedy doctors fault!" story before, always from liberals. The lie must come from a common source.
Liberals seem to have lost the ability to evaluate sources and arguments.

Amartel said...

"Being whipped sure is a popular job."

I don't care for it, myself, but many nonlawyers are quite invested in the notion.

I'm confused about how we get from Point A Obamacare is a galactic unread unconstitutional travesty to
Point B lawyers are destructive creatures blind to truth, beauty and freedom etc.

damikesc said...

Selling health insurance across state lines is worthless, since for a plan to be viable, they require a large group of participating physicians, hospitals, labs, etc. This is not possible to accomplish in most places, with the exception of metro areas bordering or including other states.

Got to disagree. The risk pool will expand exponentially. Doctors will appreciate the increased simplicity in filing claims. As somebody here already said, BCBS as a national program as opposed to a state-by-state affair with be supported heavily. I could see other firms, such as Allstate, also joining in on the health insurance market.

...and the cost to the government? Basically zero.

Seeing Red said...
This comment has been removed by the author.
David said...

The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.

Kagan, as one of the drafters of the bill, knows it well and has a proprietary interest in its success.

Q said...

Whether it's severable or not, as a practical matter it cannot be possible to demand insurers cover pre-existing conditions without also mandating universal coverage.


Seems to me the problem there is in all that demanding and mandating.

Let's just stipulate that once government starts mandating and demanding some things, it will inevitably end up mandating and demanding everything. Much of the origin of the current mess can be found in a previous government mandate - the mandate that hospitals (private economic actors) had to treat everybody who came to them regardless of their ability to pay.

This is not too dissimilar to the government mandate commanding insurance companies (also nominally private economic actors) to sell insurance to people regardless of any preexisting conditions. Calling what is being sold in such cases "insurance" is Orwellian language.

To correct the problems caused by these mandates, we arrive at the purported need for the "universal mandate", the so-called "individual mandate". One mandate to rule them all, and in the darkness bind them.

I wonder what the reaction would be if the federal government mandated that all the law firms in America had to provide free legal assistance to people who could not afford to pay for it. I suspect that Americas lawyers would suddenly discover that the Constitution places sharp limits on the ability of the state to demand stuff from people for free.

Scott M said...

Reports on the oral arguments today seem to have Kennedy siding with Scalia, Alito, Thomas and Roberts, at least in that if the law is struck down, it gets struck down in toto. That's good news.

Seeing Red said...

Selling health insurance across state lines is worthless, since for a plan to be viable, they require a large group of participating physicians, hospitals, labs, etc. This is not possible to accomplish in most places, with the exception of metro areas bordering or including other states.

-------------------------


Since most people live near metropolitan areas, what is the issue?

If the cost comes down for those people, wouldn't it make a difference in the US overall, where it counts?


So you don't think hospitals/ physicians stuck in the middle of states would reach out to be affiliated or become a sateliite office of a group who is based in a larger metropolitan area?

Rabel said...

Read through yesterday's arguments and one thing that struck me was that Michael Carvin seemed to be the smartest SOB in the room.

Googled him and, damn, man has a cranium that would make a Talosian mother proud. Guy could head-butt a water buffalo.

Sotomayor, on the other hand... Well who am I to judge. She's wearing a robe and rewriting the constitution while I'm in my jammies trying to convince Blogger I'm not a robot.

Bender said...

Rabel --
Would you like Sotomayor more if she had green skin?

Tim said...

"Reports on the oral arguments today seem to have Kennedy siding with Scalia, Alito, Thomas and Roberts, at least in that if the law is struck down, it gets struck down in toto. That's good news."

"Are you serious? Are you serious?"

-- Nancy Pelosi
October 22, 2009.

Trashhauler said...

I took this as a challenge and I have now read all 2700 pages. Imagine my surprise to discover that included in the statute is a declaration of war against Canada, with D-Day set for 15 May 2014 or whenever the snow melts.

Basil said...

High deductible policies plus HSAs. Unlimited accumulations in the HSAs. Government premium support plus HSA support. Once you have the HSA no out of pocket at all.

Bart DePalma said...
This comment has been removed by the author.
Bart DePalma said...

The government may have made a serious mistake arguing that any part of the Obamacare legislation must go down with the individual mandate as a means to blackmail the Kennedy and Roberts to uphold the mandate.

In fact, the individual mandate was meant to help pay for the dramatic expansion of coverage mandated by the legislation itself and by HHS regulations. These coverage mandates make up well over half the bill and the vast majority of HHS regs.

If any part of the Obamacare bill must fall with the individual mandate, then realistically all of it must go.

Rabel said...

Bender,

I could go for that. Can she dance?

Also, the three minute gap between our posts raises the possibility that you didn't have to look up the Talosians.

Troubling, it is.

Elliott A said...

No, it is too complicated to get privileges and too expensive to set up offices and travel to them. While most people live in large metros, not that many (except NY) border other high density states. Just not workable.

Bart DePalma said...

Ann:

You want a conspiracy theory, try this one.

Romney's greatest weakness is his awful Romneycare program, which was the basis for Obamacare.

If the five conservatives strike down Obamacare, that issue is largely moot and Romney can concentrate on slamming Obama over the head with the economy.

THUS, are the conservative justices in a conspiracy to get Romney elected by striking down Obamacare?

Just saying...

Seven Machos said...

Incidentally, the obvious answer to Retread's question is a vast expansion of health savings accounts. Compelling -- not to say forcing -- health savings accounts that are tax free gives people money to pay for medical services as they need or choose and completely changes the out-of-control pricing dynamic in the industry, which is driven almost completely by massive subsidies from the government. See American colleges and universities for an analogous model.

Why are leftists so bereft of political imagination?

Todd said...

Jay Retread, you left out an option.

Get the government OUT of the health care business. Get them out of regulating how much coverage a person must have. Get them out of complicating insurance. Make them stop subsidizing over use and inflating costs. Allow the system to revert back to how it used to be. When people got "catastrophic" insurance and paid for routine care out of pocket. Reduce government interference and regulation. That will reduce costs.

Clyde said...

Send the entire Obamacare abomination to the shredder, set the shreds alight, entomb the ashes in concrete and then let James Cameron drop them into the ocean's deepest abyss.

It's the only way to be sure.

SDN said...

"4) The real conservative solution that they will not own up to-those who can not or will not get health insurance do not receive medical care even if it is life saving."

5) Those godbothery religious charities you hate might be allowed to perform their charitable works without interference. But of course, that would be realistic, so you'll never agree.

Rick67 said...

"The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional."

I continue to be deeply troubled that the "four liberal justices" appear to have already made up their minds. Even liberal leaning news organizations seem to say this without any hint of irony. Why should Kagan et alteri be worried about this? There's a part of me that realizes - as if one couldn't have figured this out sooner - that we might have four justices who don't really care about the supremacy of the Constitution.

Kirk Parker said...

Elliott A.,

"Selling health insurance across state lines is worthless, since for a plan to be viable, they require a large group of participating physicians, hospitals, labs, etc."

Funny, my auto insurance doesn't work that way. Of course what this really shows, once again, is the misapplicability of the term "insurance" to what is actually a "prepaid health plan".

Elliott A said...

@Kirk- It was insurance until the government got in the way

Q said...

Romney's greatest weakness is his awful Romneycare program, which was the basis for Obamacare.



It would be nice if people on the right had some familiarity with the Tenth Amendment. It's one thing read this nonsense from the left, but I expect better from those who call themselves conservatives or libertarians,

damikesc said...

Now is not the time for Paul Ryan's budget to be pushed in Congress. Make the Dems propose something first after the SCOTUS rules.

That would be a fool's errand. NBC would start with the whole "Well, the Republicans wanted the bill killed. So, what will they do in its place? We ask random morons outside..."

Romney's greatest weakness is his awful Romneycare program, which was the basis for Obamacare.

States are SUPPOSED to be where these kinda of programs occur. Heck, if every state did a program of some sort, we'd have fifty ideas to choose from.

bagoh20 said...

"I'm confused about how we get from Point A Obamacare is a galactic unread unconstitutional travesty to
Point B lawyers are destructive creatures blind to truth, beauty and freedom etc."


Because to us non-lawyers the 10th Amendment is pretty clear. And the ACA is a monstrous mess that directly attacks it, not to mention other simple parts of a classic simple document.

We ask ourselves how does this happen, how can anyone try to do this and then think they can get away with it.

And how can it be so hard to sort out something so simple.

Rules for the rest of us like how to make a widget, how to build an addition on our house, how to drive from one city to another are all handled daily with few problems, except the legal aspects of them.

Then we realize this ACA thing is all legal issues, all lawyers, and it's gonna be a mess every day for every person in the country.

Hey we get a little pissed when it's always the same profession screwing things up. My plumber, my mechanic, even my doctor doesn't force me to jump through silly hoops to get through the day, except when a lawyer is involved.

I consult with and pay lawyers nearly every month for some advice or documents, and I don't get why you guy are into everything else. If it was the plumbers I ride them, but it's not. What can I say? You guys just can't leave shit alone. Don't blame me for noticing. Get your nose out of my everthing, please.

Jacques Cuze said...

Ignoring all the legal reasoning about what may or may not be severable and why,

It seems downright stupid, illogical, and insane, that a law that says, "We want to do X", and says, "And here is how we pay for X", is not completely thrown out when the court rules, "You cannot pay for X that way."

Don M said...

If you want to pay for someone else's health care, you will not be stopped.

If you don't want to pay for it, you do not have the ability to coerce someone else to pay for it.

Many people chose to buy insurance, which is a contract that pools risk, providing a promise of a future payment in the event of certain occurances, this promise being provided in exchange for money now.

Any insurance company that doesn't keep its promises would quickly be unable to find people who would agree to give it money now. Insurance companies study the likelihood of various events and update their prices, coverage and promises frequently.

crosspatch said...

It is my opinion that part of the PROBLEM of higher health care costs is BECAUSE of insurance. People have lost touch with how much things actually cost if they don't have to foot the bill. A second problem is that health care is nailed too often to the employer. We need to have a system where people have their own health insurance and it isn't tied to the employer at all. Too many people are in jobs they don't want just because of health insurance.

I had a friend who was in the hospital for surgery a few years ago. She had very high deductible insurance. She asked her doctor what supplies she could bring herself. Things like gauze and gauze sponges, tylenol, etc. As long as the medical supplies were sterile and unopened, she could provide some of her own supplies that she bought at her local pharmacy at a much lower cost than the hospital would charge her for these same items. She figures she saved over $1500 dollars just by buying some of her own supplies and medications available over the counter.

She even caught them billing her for stuff she brought herself such as Tylenol every four hours. If she had insurance paying for everything, she would have never checked the bills carefully enough to notice.

Insurance keeps people insulated from the real costs and the services that they actually receive. Health care is just like any other business, they are only going to charge what they can receive in payment. If they price their services out of reach of too many "customers", they go out of business.

Limit medical lawsuits. Allow individuals to claim the same tax break that employers get for providing their own health insurance. Allow people to band together for group coverage using something akin to the "credit union" model for financial services. Allow insurance companies to operate across state lines (how much does it cost Kaiser to have a separate company for each state?).

Dust Bunny Queen said...

I'll take your points one at a time.

It is my opinion that part of the PROBLEM of higher health care costs is BECAUSE of insurance. People have lost touch with how much things actually cost if they don't have to foot the bill.

Agreed

However one of the reasons for this is that health insurance is no longer just insurance to cover unexpected events that are beyond the ability to pay. Instead the policies are larded up with coverage for things that not everyone wants or needs. Instead of being just coverage for catastrophies....they cover almost everything.

One of the reasons for this is beyond the control of the insurance companies since each State Insurance Commission dictates to the companies what they MUST offer. I guarantee you that the insurance companies don't want to offer all of these services to everyone. It is costly to the company and increases the claims they have to pay.

The ideal would be to allow the companies to offer a basic, bare bones catastrophic plan at a very low cost. Not many people would actually collect on that type of plan.

THEN. All the add on services and the lower deductibles should be paid for as riders.

People would be more likely to cut back on unnecessary and over useage of health care services, if...1. they had to pay more in their policies and 2. their deductibles were much higher.


A second problem is that health care is nailed too often to the employer. We need to have a system where people have their own health insurance and it isn't tied to the employer at all. Too many people are in jobs they don't want just because of health insurance

Agreed.

Most people have no idea how much their insurance premiums are when the employer is paying them. They don't care, because the premium amounts, sometimes as much as 20,000 a year per employee and family are not added to compensation.

SO...because there is no monetary consequence the employees choose the most expensive and most lavish plan and as you can see in point #1 it just increases the cost of insurance premiums. A vicious circle.

If the employees do not have to pay for their insurance and get a tax free ride on premiums....the individual who is paying for their own insurance should also get a tax break, (similar to the employer who takes the premiums as an expense)

The other issue that no one has addressed is the the over use of Medical Services because "insurance will cover it", has also created a supply and demand curve.

The more people demand something that is finite or limited.....the higher the cost.

If people
1.knew the cost of the services they were asking for
2. understood the effect of cost on premiums of the cadillac plans
3. had to pay more out of pocket for ordinary routine services

The cost would come down on premiums for insurance and the cost would come down on routine services.

Tort reform, would also go a long long way to bringing down costs.

PatCA said...

Trashhauler, I found a great recipe for couscous on p. 2783.

Bender said...

The very fact that he thinks that it is not only constitutionally permissible, but a good idea, for Governor Romney to impose an individual mandate (even if a President Romney would not have that power) is exactly the reason why he is completely disqualified from any serious consideration for being president.

Tyrants and despots are not OK so long as they are in the state house, rather than the White House.

And if ObamaCare is struck down, and Romney does get elected, be sure to look for him to seek to work with Democrats to rework and come up with another comprehensive health care finance reform plan. Look for him to try to implement RomneyCare 2.0, Federal Version.

Bender said...

Make no mistake, if you listen to him carefully, all too often Romney is merely saying that Obama is not competent. That is, that Obama might have the right intentions, but his failure is in the execution, however Romney would be a better manager and implementer.

Look for a President Romney to say, "Yes, let's have healthcare reform, and I'm going to show you how to do it the right way." And we'll go right down this very same road again.

That is because Romney just does not get it.

Amartel said...

Your lawyer does not force you to jump through hoops. Your lawyer is charged with knowing the law as it relates to your particular circumstances, goals, case, etc. and advising you accordingly. If the advice and representation is bad or the bill looks padded, get a new lawyer. As you point out, it's not like there's a shortage.

The legal profession is not responsible for this absurd law. We are a nation of laws and run amok power-mongering statists and their self-serving tools (of all professions just ask your doctor) have taken advantage of that fact and proliferated laws on a grand scale often without reference to the originating constitutioal framework much less common sense.

There ARE a lot of lawyers in the government (the president, approx 43% of Congress, and all of the USSC). With the exception of the USSC, most of them have never practiced law in their lives, never tried a case, never argued an appeal, never had to deal with a fire that they couldn't extinguish with vast quantities of taxpayer money and double-dealing rhetoric. Just watch a Senate confirmation hearing; most of them can barely frame a proper question if it's not written down for them. They'd be lost in an actual court battle. (Hence my recent kick which I will lay off in opposition to the presumption of great intelligence in these people.) Lastly, the nonlawyers who've been sucked into the government power vortex are not any better than the lawyers.
Exhibit A: Nancy Pelosi. (There are other exhibits.)

I get the lawyer hate, I really do. It doesn't come as news that the profession attracts unpleasant personalities. Some of us are beasts and some of us have to represent beasts. On the other hand, I've seen your other postings here and the Dick the Butcher act is not persuasive.

Barry Kearns said...

(With apologies to TMBG)

Jay saw the best minds of his generation
Destroyed by madness, starving, hysterical
Jay should be allowed to glue his poster
Jay should be allowed to think

And Jay should be allowed to blurt the merest idea
If by random whim, one occurs to him
If necessary, leave paper stains on the grey utility pole

Jay saw the worst bands of his generation
applied by magic marker to dry wall
Jay should be allowed to shoot his mouth off
Jay should have a call in show

Jay is not allowed
To ever come up with a single original thought
Jay is not allowed
To meet the criminal government agent who oppresses him

Jay was the worst hope of his generation
Destroyed by madness, starving, hysterical
Jay should be allowed to share his feelings
Jay should be allowed to feel

But sadly, this can never be
Jay is not allowed to think

bagoh20 said...

Amartel,

Look, we probably agree on most stuff, except this Dick The Butcher, who is more like 200 million of us who agree on that.

No, my lawyers are not the problem, they do helpful, difficult work. But, the profession, as you admit produces a lot of people who have no intention or ability to do that kind of helpful work.

They are in it for the power, or the ability to extract income without adding anything back. And yes, it's a terrible fact that so many people like that are in government. They don't represent the variety and quality of the American people in general, yet they have unconscionable power that they manipulate, and coerce into more power. That is who gave us this law. they didn't mostly go to trade school, Med school, or science or mathematics, nursing, or any of the myriad of other routes to knowing something, they mostly went to law school. There are many great Americans who have, and you may be one yourself, but this nation's problems are more the fault of bad lawyers than bad anything else. If I was lawyer, I'd be much more upset about that than I am.

That's not what this thread is about and I think I've already screwed it up too much talking about it here. Lets just leave it at that. I don't want to hate lawyers, and I don't. I love this forum, and a lot of that is due to the quality of the commenters who seem to be a lot of lawyers, and good people. who I learn a lot from. Much of what I say here is just ribbing. I'll try to control it from now on, you blood suckers.

bagoh20 said...

What do people actually pay for their health insurance in here?

Mine and that of everyone I work with is less than 5,000 per year for a single person, which the company mostly covers.

That's a Cadillac plan which my broker tells me almost none of her other business customers choose because of the cost.

We are a small company (less than 100) and we have some expensive people with organ transplants, numerous pregnancies, cancers, diabetes, etc.

Is that high, low or average?

Kirk Parker said...

bagoh20,

$417/mo for a "Caddilac" plan? Yeah, that's not just low, that's way low. What part of the country is this in?

bagoh20 said...

"$417/mo for a "Caddilac" plan? Yeah, that's not just low, that's way low. What part of the country is this in?"

Los Angeles, CA. and actually it's only $387/mo. $10 copay to see a doctor, and most prescriptions. No cap, no deductable.

That's up over 20% since the ACA passed, which the insurance Co. claims is to cover mandated coverages in the law. That makes sense, but even if it's a lie, the law gave them a great excuse. They have warned that depending on what happens in the SC this year it could go a lot higher in the next few years. They send me daily updates on the SC proceedings explaining what they see. "This is a big f*cking deal."

'eathen, MD said...

I'm a physician. You want to dramatically lower health care costs? Tort reform. I am convinced that more than 50% of health care costs are due to defensive medicine: unnecessary labs & imaging to rule out the 1 in 10,000 chance that you'll miss a diagnosis and be sued. Also, allow physicians to deduct from our income the cost of free care we provide. People without insurance and money have a lot more access to free health-care than you think.

ken in sc said...

The AMA does not have anything to do with how many doctors graduate from medical school. The federal government does because it subsidizes some of them and controls how many 'matches' there are for residence programs. Most doctors are not members of the AMA. Most doctors work for a salary in clinics or hospitals directly or indirectly ran by the government. They benefit from anything that benefits the government. Private practice is rare in these days.

Brian said...

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Tina said...

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stacy said...

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